Those of us who stay for Torts with Professor Rapaczynski immediately after Prof. Moglen’s class were yesterday treated to apparently diametrically opposed visions of freedom and autonomy. After Moglen’s passionate lecture on the libertarian impulse’s responsibility for the national predicament, we were treated to a reasoned and logical explanation as to why, in order to promote freedom and autonomy, we must not punish someone who shrugs his shoulders while watching a child drown at his feet.

• Are you sure that's what I said yesterday? I don't think I was addressing libertarianism any more than I was addressing spiritual pride. (Perhaps one is a version of the other?)

* Libertarianism as a shorthand for any number of things, whether it's the link between Fed decisionmakers and AIG (corruption) or a belief among a ruling class that corporations are people &c &c ac

What is going on here? Rapaczynski is not a heartless man, and while Moglen is at odds with the university, he is not at war with it.

• This is an odd juxtaposition, with no analytical benefit to the reader, so far as I can see. My beef with law school as presently conducted is that it does not serve the intended purpose of making people into more creative, happier and more socially effective lawyers. I say that law school does not do law schooling well, which is indeed not about saying that the university primarily produces oppression. But why I believe law school should be fundamentally changed in order to achieve adequately its professed purpose does not capture the essence either of what I said yesterday or of what differentiates me from Andrzej psychologically and politically.

• Does not capture the essence, point well taken. I was struck by the Fish piece in relation to this class (the professor in it seems to be undermining his own case by his course of action, and I thought it an apt comparison to how we are proceeding here). Probably not apt to the discussion at hand, and an opportunity to kill my darlings. ac

I think as we examine our status as winners of a global lottery we should not ignore the contours of the various different lotteries we have won. If you grow up in Warsaw in the 50s (privileged though you may be) you will be more skeptical of communal solutions, because you will have seen communal failure. Growing up in the US, a rebellious mind will turn on capitalism. Both views are "right," (something can be done with each) because both are essentially negations – both states are oppressive, because it is in the nature of states to oppress.

• Andrzej's background and its effect on his thought is more complex than this account suggests. Neither the man who wrote about Jean Bodin, nor the one who enthusiastically taught von Treitschke and Joseph de Maistre, was anti-statist. What causes one not to save the drowning is not necessarily heartlessness.

• See below

Our own backgrounds compel us to create our own myths, many of them born of a critical view of where we were raised. Theodor’s family history in the DDR compels him to write that the Stasi are the progeny of the Gestapo, when in fact Nazi officers were prosecuted far more vigorously in the East than in the West (the Stasi were no saints but were in fact modeled on the MGB). I, meanwhile, can’t read about the 323 executions (more than half of which took place in one year, and 60 of which were executions of Nazi officers) and the writers who lost their jobs when they refused to conform to party ideals without thinking that the US has executed more than three times that many since 1976, and that as a nation we are no stranger to silencing writers for their political views.

We should, I think, try to be aware of our personal myths, born of personal backgrounds, as we proceed. We have an opportunity (maybe even a responsibility) to overthrow the old myths, but as we do so I worry that we will replace them with myths and folklore of our own.

• Robespierre seems to me again a peculiar place to begin. The difference between what Robespierre (or Talleyrand, just so we don't think ideology has anything to do with it) are up to in the fete de la Federation or other acts of public drama is what Thurman Arnold is also up to, and what, Arnold would say, all effort to deal with organized society is always up to. So the conclusion is only an assertion, and to say of lawyering that it worries you is probably not enough of a response.

-- AndrewCase - 11 Feb 2009

I of course know very little of your or Prof. R's personal history; and he was making a legal, not a moral point (he made quite clear that there are terrible consequences to accepting the legal as moral). My language may have been broad but my thoughts were quite specific -- my concerns are not with "lawyering" (at this point I'm far from sure what lawyering means in our class -- Homer changed the world with words more than any 'lawyer,' and the words that Paul Robeson changed the world with did not come from CLS), I'm concerned with the group of us in this room and what we will be doing in three years. Do we need to ask what we will be replacing the old guard with before we soldier forth with an abstract mandate ('get people out of prison,' 'feed the hungry')? Do we need to have a set of our own positive myths in place before we take action? Is there any way to move forward without myths at all? I sense Arnold would say no -- so if myths and folklore are necessary, shouldn't the content and context of our myths come before our examination of others?

-- AndrewCase - 11 Feb 2009

• This reminds me of the suggestion that we first have to know how to fix law school before we can go to it. The whole "personal myths" strain isn't an idea of Arnold's: his point has to do with how organizations work, not how individual human psyches are constructed. One can of course ask about the creeds, habits and attitudes of law school as an organization; in my experience that gets overasked by my students, if anything.

Andrew: If, as you suggested, it's in the nature of states (or could we say, on a more general level, "official" power structures?) to oppress, then maybe we know we're on the right track if our own myths stand in opposition to "official" myths, or at least address some of the ways they fail on their own terms? That would mean remaining the perpetual underdog, which probably gets depressing, but it might also be a way to keep ourselves honest. Maybe myths become dangerous when they move from pointing out sources of injustice to justifying injustices of their own (as with Robespierre, or libertarianism)?

-- MichaelHolloway - 12 Feb 2009

Michael -- I agree on the last point. I'm not sure whether remaining the perpetual underdog would be depressing unless we choose to let it be. The 'official' myths started somewhere, they were invented by someone, and they then developed into official myths somehow -- that may not be an idea of Arnold's, but it seems to be something that can be done with his analysis.

-- AndrewCase - 12 Feb 2009